James A. Seddon to RICHMOND, VA., May 2, 1864, May 2, 1864

Richmond, Va., May 2, 1864.

His Excellency Z. B. VANCE, Governor of North Carolina, Raleigh, N. C.:

Sir: Major-General Whiting has referred to this Department the correspondence between yourself and him relative to the exemption of D. L. Russell, under your claim for his discharge that he is an officer of the State of North Carolina. No act of Congress has provided for the discharge of any person belonging to the Army from service in consequence of his election to an office, either by the State or Confederate Government, except the act of April 2, 1863. That act provides that any person who has been elected or appointed since entering the military service, or who may be thereafter elected or appointed a Senator or Representative in Congress or in any State Legislature, judge of the circuit, district, or superior courts of law or equity in any State of the Confederacy, district attorney, clerk of any court of record, judge of any court of probate, collector of State taxes, not to exceed one for each county, parish recorder, upon proof of his election or appointment, shall be permitted to resign if he be an officer, or if a non-commissioned officer or private, shall be discharged.

All the conscription acts provide for continuing in the Army those who belong to it, and the exemption allowed by the acts plainly refer to persons who are not in the Army, but who are made liable to conscription.

The acts relative to the exemption of State officers refer only to such persons. The fourth section of the act of May 1, 1863, provides that, in addition to the enumerated officers mentioned in previous acts, there should be exempted all State officers whom the Governor of the State may claim to have exempted for the due administration of the laws and government thereof; but the exemption shall not continue in any State after the adjournment of the next regular session of its Legislature, unless such Legislature shall by law exempt them from military duty in the Provisional Army of the Confederate States.

By the military act of the 17th of February last Congress repealed all laws exempting persons from military service, and provided that none should be exempt but those enumerated in that act. The question presented, then, is, what is the condition of Mr. Russell under this act? The second section of the act placed in the service those between seventeen and fifty—all residents in the Confederate States not belonging to the Army—for the war. From this class exemptions were to be made. Among the exemptions are such State officers as the Governor of any State might certify to be necessary to the proper administration of the State government. The Department does not in any case go behind the certificate of the Governor of the State to ascertain whether the person be an officer or whether his services are required for the administration of the government. But the person claimed must be one who does not belong to the Army.

The person in the Army is already in the service of the Confederate States under the laws of the Confederacy, and no power exists to

withdraw him from that service, except in the cases provided by those laws. This power has not been delegated to the State Executive under the act aforesaid, or any other act.

The facts disclosed by the papers show that Russell was in the service at the date of the act of 17th of February, 1864, and held no office in the State at that time; that he was reduced to the ranks by the sentence of a court-martial, and under the Army Regulations became liable to service in the brigade to which he belonged; that subsequent to this he procured his election, and that upon that election this claim was made on his behalf by you. This question has been frequently presented to the Department, and when the laws and regulations have been explained the decisions of the Department have been acquiesced in.

Very respectfully, your obedient servant,

Secretary of War.

RICHMOND, VA., May 2, 1864.

LIynchburg, Va.:

GENERAL: Your letter of the 4th of April, 1864, inquiring whether

officers of the second-class State militia organization between eighteen and forty-five years of age are liable to conscription, has been

received.